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Friend This: Why Those Damaged During the Facebook IPO Will Recover (Almost) Nothing from NASDAQ Thomas L Washington and Lee Law Review Volume 71 | Issue 2 Article 26 Spring 3-1-2014 Friend This: Why Those Damaged During the Facebook IPO Will Recover (Almost) Nothing from NASDAQ Thomas L. Short Washington and Lee University School of Law Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Banking and Finance Law Commons Recommended Citation Thomas L. Short, Friend This: Why Those Damaged During the Facebook IPO Will Recover (Almost) Nothing from NASDAQ, 71 Wash. & Lee L. Rev. 1519 (2014), https://scholarlycommons.law.wlu.edu/wlulr/vol71/iss2/26 This Note is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Friend This: Why Those Damaged During the Facebook IPO Will Recover (Almost) Nothing from NASDAQ Thomas L. Short* Table of Contents I. Introduction ................................................................... 1520 II. SRO Liability Today ...................................................... 1525 A. SROs Within the Present Regulatory Scheme and NASDAQ’s Place Within It .............................. 1525 B. Determining Absolute Immunity ............................ 1528 1. Actions Afforded Absolute Immunity ................ 1530 2. Actions Denied Absolute Immunity .................. 1540 3. Absolute Immunity and SROs—The Tests Employed ........................................................... 1545 III. NASDAQ’s Conditional Absolute Immunity in Light of the Facebook IPO ............................................. 1546 A. The Events of the Facebook IPO ............................. 1547 B. The Present Law Applied to NASDAQ’s Conduct During the Facebook IPO ......................... 1551 1. The Argument for Absolute Immunity .............. 1551 a. IPOs Constitute a Regulatory Function ........................................................ 1551 b. NASDAQ’s Actions in Effectuating the Facebook IPO Are Entitled to Absolute Immunity ...................................................... 1554 2. The Argument Against Absolute Immunity ..... 1556 * Candidate for J.D., Washington and Lee University School of Law, May 2014. I would like to thank my faculty Note advisor, Professor Christopher Bruner, and the editorial board of the Washington and Lee Law Review for their invaluable assistance in the development of this Note. I would also like to thank my fiancée, Alison Faux, my friends, and family for their patience, love, and support. Finally, thank you to General Lee, my dog, for forcing me outside and allowing me to keep this process in perspective. 1519 1520 71 WASH. & LEE L. REV. 1519 (2014) a. IPOs Constitute a Private, For-Profit Business Activity .......................................... 1556 3. Why a Court Should Find that NASDAQ Is Entitled to Absolute Immunity for Its Actions During the Facebook IPO ..................................................... 1558 a. IPOs Will Be Considered a Regulatory Function ........................................................ 1558 IV. Regulatory Functions and Absolute Immunity: A New Approach ............................................................ 1561 A. The New Approach .................................................. 1562 B. The New Approach as Applied to the Facebook IPO ........................................................... 1563 C. Counterarguments to the New Approach ............... 1564 V. Conclusion ...................................................................... 1567 I. Introduction Facebook, Inc. (Facebook) “went public” on NASDAQ on May 18, 2012, raising $16 billion—the third-largest initial public offering (IPO) in the history of the United States.1 In the first 30 seconds of trading, 80 million shares changed hands.2 By the end of the first day, 567 million shares had been traded.3 This was the highest volume of shares traded in an IPO, “smashing” General Motors Co.’s previous record of 450 million shares.4 The records do not stop there, however. 1. April Dembosky & Telis Demos, Faltering Start for the New Facebook, FT.COM (May 18, 2012, 11:23 PM), http://www.ft.com/intl/cms/s/0/c7bfd916-a113- 11e1-9fbd-00144feabdc0.html#axzz2Jqp27Nkz (last visited Feb. 3, 2013) (noting that the Facebook IPO trailed VISA’s IPO in 2009 and General Motors’s IPO in 2010 in terms of funds raised) (on file with the Washington and Lee Law Review). 2. Julianne Pepitone, Facebook Trading Sets Record IPO Volume, CNN MONEY (May 18, 2012, 4:05 PM), http://money.cnn.com/2012/05/18/technology/ facebook-ipo-trading/index.htm (last visited Feb. 3, 2013) (on file with the Washington and Lee Law Review). 3 Id. 4. Id. FRIEND THIS 1521 The Facebook IPO also resulted in the largest number of lawsuits ever filed due to an IPO.5 As of September 2012, only four months after the IPO, twenty-nine securities class action lawsuits had been filed.6 By December 2012, seven months after the IPO, forty-one actions, and counting, were filed.7 As a result of “system difficulties” experienced by NASDAQ, major market makers and broker dealers lost approximately $500 million in the IPO.8 Losses of this scale, and in this context, prompt a difficult question: What is the extent of NASDAQ’s liability for its system difficulties?9 The extent of NASDAQ’s liability is complicated. Pursuant to the Securities Exchange Act of 1934 (Exchange Act),10 Congress established a regulatory system that relies upon self-regulatory organizations (SROs) to regulate and administer the day-to-day conduct of the national securities exchanges under the supervision of the Securities and Exchange Commission (SEC).11 Since that time, many of the SROs have become private, 5. See David Benoit, Another Facebook IPO Superlative: Most 2012 Lawsuits, WALL ST. J. (Sept. 26, 2012, 1:37 PM), http://blogs. wsj.com/deals/2012/09/26/another-facebook-ipo-superlative-most-2012-lawsuits/ (last visited Jan. 12, 2013) (“Facebook is getting sued. A lot.”) (on file with the Washington and Lee Law Review). 6. Id. (“In 2001, when the tech bubble was soaring and plenty of IPOs went sour, no IPO faced more than four separate lawsuits [according to Stanford University’s Securities Class Action Clearinghouse] . .”). 7. In re Facebook, Inc., IPO Sec. & Deriv. Litig., 288 F.R.D. 26, 31 (S.D.N.Y. 2012) (MDL No. 12-2389) [hereinafter SDNY Consolidation Order]. This is according to the U.S. District Court for the Southern District of New York (SDNY), which, per the U.S. Judicial Panel on Multidistrict Litigation, was assigned the actions stemming from the Facebook IPO. Id. at 29. 8. John McCrank, UBS Says Nasdaq’s Facebook Compensation Plan Inadequate, REUTERS (Aug. 23, 2012, 3:54 PM), http://www.reuters.com/article/ 2012/08/23/us-nasdaq-facebook-compensation-idUSBRE87L0W620120823 (last visited Feb. 3, 2013) (on file with the Washington and Lee Law Review). 9. Legal actions for securities regulation violations have been filed against Facebook, Facebook’s officers, and the underwriters who participated in the IPO. These actions are outside the scope of this Note. For a broad overview of those actions, see SDNY Consolidation Order, supra note 7, at 31–34; Julianne Pepitone, Facebook IPO: What the %$#! Happened?, CNN MONEY (May 23, 2012, 6:06 PM), http://money.cnn.com/2012/05/23/technology/facebook-ipo-what-went- wrong/index.htm (last visited Feb. 3, 2013) (providing a general overview of the claims sparked by the Facebook IPO) (on file with the Washington and Lee Law Review). 10. Securities Exchange Act of 1934, Pub. L. No. 73-291, 48 Stat. 881 (codified as amended in scattered sections of 15 U.S.C.). 11. See Weissman v. Nat’l Ass’n of Sec. Dealers, 500 F.3d 1293, 1296 (11th 1522 71 WASH. & LEE L. REV. 1519 (2014) for-profit corporations.12 NASDAQ is an SRO, a national securities exchange, and a “quasi-private” regulatory entity that “operate[s] as an additional layer of investor protection” in the regulatory system.13 NASDAQ is also a private company with $3.4 billion in gross revenues, net income of $383 million, and over 173 million shares of common stock.14 In light of the governmental functions it provides, NASDAQ is protected by absolute immunity when it performs its quasi- governmental, “statutorily delegated adjudicatory, regulatory, and prosecutorial functions.”15 But NASDAQ is not entitled to absolute immunity when it acts pursuant to its “non- governmental” and “private business interests.”16 The question Cir. 2007) (en banc) (noting that SROs “conduct the day-to-day regulation and administration of the United States stock markets, under the close supervision of the United States Securities and Exchange Commission”). 12. Roberta S. Karmel, Should Securities Industry Self-Regulatory Organizations Be Considered Government Agencies?, 14 STAN. J.L. BUS. & FIN. 151, 159–70 (2008) (describing the history of NASDAQ and the NYSE and noting their present status as “public companies”). 13. STEPHEN J. CHOI & A.C. PRITCHARD, SECURITIES REGULATION: CASES AND ANALYSIS 16, 45 (3d ed. 2012). 14. The NASDAQ OMX Grp., Inc., Annual Report, 1, F-4 (Form 10-K) (2011) [hereinafter NASDAQ Annual Report]. 15. Weissman, 500 F.3d at 1296 (citing Barbara v. N.Y. Stock Exch., 99 F.3d 49, 58, 59 (2d Cir. 1996) (“[C]ourts have not hesitated to extend the doctrine of absolute immunity to private entities engaged in quasi-public adjudicatory
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